As discussed in my earlier posts here and here, Ontario’s new budget bill contains quite a number of measures related to digital, data and privacy issues. In this third post I look at the proposed new statute that will balance privacy with the openness of provincial tribunal adjudicative records.

This new statute responds to the decision in Toronto Star v. AG Ontario, discussed in an earlier post here,in which Justice Morgan of the Ontario Supreme Court ruled that Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) breached the right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms. It did so because of the way in which it applied to administrative tribunals in respect of requests for access to their adjudicative records. Some tribunals to which FIPPA applied required those seeking access to adjudicative records to file access to information requests. What breached the Charter right was the presumption in FIPPA that personal information could not be disclosed unless one of the statutory exceptions applied. This was found to clash with the open courts principle. Justice Morgan suspended the declaration of invalidity of the legislation for one year in order to give the government time to fix the problem. The year is up later this month; it is therefore not surprising that this legislative change has found its way into the omnibus bill.

The Tribunal Adjudicative Records Act, 2019provides, as a default principle, that the adjudicative records of tribunals prescribed by regulations enacted under this statute are to be made available to the public (s. 2(1)). The definition of adjudicative records in s. 1(2) is quite broad and includes transcripts of oral evidence, documents admitted in evidence, and reasons for decision. Adjudicative records expressly do not include personal notes or draft decisions, or records related to attempts to resolve matters through alternative dispute resolution procedures.

The obligation to disclose adjudicative records will be subject to any confidentiality orders that the tribunal might make (s. 2(2)). A confidentiality order in relation to personal information can be issued where:

2(3)(b) intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.

A confidentiality order may be applied for by a party to the proceedings or by a person who would be affected by the disclosure of the information at issue (s. 2(3)).

Section 3(1) gives tribunals the authority to make rules governing their own procedures relating to providing access or issuing confidentiality orders. Under s. 4, tribunals are, with ministerial permission, entitled to charge fees for access to their adjudicative records. The new statute also provides for consequential amendments to FIPPA that will exclude the application of that statute to “personal notes, draft decisions, draft orders and communications related to draft decisions or draft orders that are created by or for a person who is acting in a quasi-judicial capacity. It also excludes the application of FIPPA to adjudicative records covered by the new statute.

This new statute resolves the constitutional issues at the heart of the Toronto Star decision. It does not, however, resolve other issues related to privacy and administrative tribunal decisions that have long been the subject of debate and discussion. In a recent Ontario case, for example, the personal information of third parties to a matter before the Ontario Human Rights Tribunal ended up in the tribunal’s decision. While the new Tribunal Adjudicative Records Act will allow third parties to apply for confidentiality orders, it is not clear how such individuals will know in advance that their personal information might be published. Further, many administrative tribunals deal with highly sensitive matters involving personal health or financial information. While they are urged to take privacy into account in the drafting of their decisions and in the amount of personal information shared, the trend towards providing broader access through online publication of decisions is leading to greater privacy risks for individuals that may not be properly balanced against the open courts principle. It would have been good to see in this new statute some recognition of the importance of these issues. Administrative tribunals are not courts, and government would not unduly interfere with their independence by stating in law that the disclosure of personal information should be minimized to only that which is clearly necessary to explain the reasons for decision, or by limiting the disclosure of some personal information in versions of decisions published online.

A decision of the U.S. Court of Appeals for the 10th Circuit highlights the power dynamics around rights to collect and share data. It marks an important victory for environmental activists, and should also be of interest to all those who engage in citizen science, as well as community-based environmental monitoring.

The case arose after the Wyoming legislature passed a law titled Trespassing to Unlawfully Collect Resource Data that imposed civil and criminal liability on any person who crossed over private land in order to “access adjacent or proximate land where he collects resource data.” The statutory definitions of resource data included all kinds of data gathering activity from taking notes to photographing wildlife or taking samples of soil or water.

The backstory to the legislation involved efforts by environmental activists with the Western Watersheds Project to document the impact of cattle grazing on water quality, and to push for limits on grazing on public lands. These efforts were opposed by cattle ranchers, who apparently carry enough clout to push the legislature to enact such a law. A predecessor statute in 2015, titled Trespassing to Collect Data, created civil and criminal liability for collecting data on “open lands”. After the constitutionality of the 2015 law was challenged, it was amended to prohibit crossing private land without permission in order to collect data on “adjacent or proximate land” (which might be public land). It was this amended version that was considered by the appellate court.

The issue before the Court was not whether there was a broad right to collect resource data on either public or private land. Rather, it was whether the state, by creating new civil and criminal trespass penalties for those who crossed private land without permission in order to collect data on public land, violated the free speech rights of the data collectors. The plaintiffs’ argument was essentially that although there were already penalties for trespass on private land, the statute created additional penalties for those who trespassed on private land for the purpose of collecting data on public land. Thus, the court framed the issue as “not whether trespassing is protected conduct, but whether the act of collecting resource data on public lands qualifies as protected speech.” The court noted that the prohibited acts under the law involved “collecting water samples, taking handwritten notes about habitat conditions, making an audio recording of one’s observation of vegetation, or photographing animals”, so long as location data was also included.

The Court noted that a number of federal and state environmental statutes and regulations provided for public submission of environmental data as part of assessment and decision-making processes. The plaintiffs argued that a law restricting their ability to gather environmental data inhibited their ability to participate in such processes, thus limiting their freedom of speech. The Court agreed, noting that the First Amendment extends to the “creation” of speech. The Court observed that “An individual who photographs animals or takes notes about habitat conditions is creating speech in the same manner as an individual who records a police encounter”. The Court also found that the taking of samples, though “somewhat further afield of pure speech”, was protected. In this case, the samples were characterized by the Court as “information plaintiffs need to engage in environmental advocacy”. The Court also observed that the plaintiffs used the data they collected in advocacy activities, and that this type of political engagement was at the core of the First Amendment protection.

The Court does caution that there is no general “unrestrained right to gather information”. As a result, laws that, by banning activities incidentally prevent the ability to gather information about those activities would not run afoul of the First Amendment. In this way, a general prohibition on trespass does not offend the First Amendment, even if it means that someone would be equally barred from trespassing to gather information. What was problematic here was that the laws created new penalties that specifically applied to trespass for data gathering activities.

Although the legislation in this case might seem to be an outlier product of an aggressive stakeholder lobby of government, the issues it raises have a broader significance. Control over data, access to data and even the ability to create data are all crucially important in our data-driven society. My ongoing research explores issues of ownership, control and access to data – expect to see more posts on these topics over the course of the year.

The Supreme Court of the United States (SCOTUS) has struck down a provision of that country’s trademark statute, the Lanham Act, for violating the constitutionally guaranteed freedom of speech. The provision in question is the “disparagement” clause, which barred the registration of any trademark “which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” (§1052(a)).

The long-simmering issue of the constitutionality of this provision came to a head in two recent high profile cases, only one of which was before SCOTUS. The case heard by SCOTUS was Matal v. Tam, and it involved the Asian dance band The Slants, which had unsuccessfully sought to register their name as a trademark. The band’s name uses a common racial slur, but their objective in registering the name was “to “reclaim” and “take ownership” of stereotypes about people of Asian ethnicity.” (at p. 7) The other case, which had been put on hold by an appellate court pending the decision of SCOTUS in Matal v. Tam, involved the infamous name of the Washington D.C.’s football team, the Redskins. The Trademark Trial and Appeal Board had ruled that this name was disparaging of Native Americans, and ordered it struck from the register. This decision had been upheld by a court in review, and was under appeal. As a result of the decision in Tam, this name will undoubtedly be allowed to stand.

In a nutshell, a unanimous SCOTUS ruled that the disparagement clause prohibited certain forms of speech, and confirmed that “[s]peech may not be banned on the ground that it expresses ideas that offend.” (pp. 1-2) The court easily rejected a series of arguments by the U.S. government to the effect that trademarks were government and not private speech; that trademarks were a form of government subsidy; or that trademark registration was a kind of government program. It came back to the view that the case was simply a matter of “viewpoint discrimination” – in other words, that some speech was being banned by government because of the point of view that it expressed. Justice Alito, writing the majority opinion, firmly stated that a government attempt to prevent the expression of ideas that offend “strikes at the heart of the First Amendment.” (at p. 25) He noted that the clause was so broadly worded that it prohibited disparagement on any basis, suggesting that it could be applied to trademarks such as “Down with racists” or “Down with sexists” (not, of course, that this has ever happened). He characterized it as “not an anti-discrimination clause; it is a happy-talk clause”. (at p. 25) Justice Alito noted that as drafted, the “clause protects every person living or dead as well as every institution.” (at para 26) The court found the provision unconstitutional regardless of whether it was characterized as commercial speech (which carries a lower level of scrutiny than, for example, political expression). He wrote:“The commercial market is stacked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates.” (at para 26) He observed that free speech would be endangered if “affixing the commercial label permits the suppression of any speech that may lead to political or social “volatility”.” (at para 26)

This decision ends a long saga involving offensive trademarks in the United States. In the Canadian context, a provision in the Trade-marks Act that effectively prohibits the adoption, use or registration of a trademark that is “scandalous, obscene or immoral” (s. 9(1)(j)) has yet to be properly tested in court or measured against the Canadian Charter of Rights and Freedoms. Given the erratic history of the use of the provision (see my post here), it undoubtedly violates the freedom of expression, and would be difficult to save under section 1 as a reasonable limit, demonstrably justified in a free and democratic society. This raises the question of what other means are available to address offensive speech in trademarks. In the U.S. many have argued that this is an issue for the market to decide; if a mark is sufficiently offensive, consumer repugnance will lead to a failure of the product or service or force the trademark owner to change the mark. Given the long history of sports team names and logos such as those of Washington D.C.’s NFL team and Cleveland’s Major League Baseball team, this is a questionable theory. The disparagement of minority groups is not easily addressed by market forces if the majority is indifferent to or complicit in the offense.

In Canada, the answers may come from outside trademark law. Certainly there are hate speech laws in Canada that might apply to the adoption of highly offensive trademarks. The human rights challenges brought by indigenous activist Douglas Cardinal against Rogers, Major League Baseball and the Cleveland baseball franchise (see my post here) are well worth watching. If these claims eventually succeed, they may provide another route by which some trademarks (at least those associated with the provision of services covered by human rights legislation) may be challenged.

Like other access to information regimes in Canada, Ontario’s FIPPA sets a default rule that citizens have a right of access to information in the hands of government and its agencies and departments. This default rule is subject to a number of exceptions that allow government institutions to refuse to disclose information that would, among other things, violate solicitor client privilege, reveal third party confidential commercial information, or adversely impact privacy rights. When a government institution refuses to release all or some of the requested information on one of these statutory grounds, the requesting party can complain to the Office of the Information and Privacy Commissioner (OIPC), which is authorized to resolve such disputes.That, in a nutshell, is the regime established under FIPPA.

In this case, the applicants challenged a provision of FIPPA that was added to the statute in 2012. Section 65(5.7) provides that “This Act does not apply to records relating to the provision of abortion services.” The Applicants argued that this exception violated their right to freedom of expression under s. 2(b) of the Charter by limiting their right of access to information. In a 2010 decision, the Supreme Court of Canada held that there was no constitutional right of access to information; rather, access was a “derivative” right related to the freedom of expression. A denial of access to information could violate the freedom of expression where access “is a necessary precondition of meaningful expression on the functioning of government.” (at para 30) Justice Labrosse’s decision therefore turns on a conclusion that the denial of access to the statistical data at issue in this case prevents “meaningful expression on the functioning of government.”In this case, Justice Labrosse characterizes the information currently available as “less than 50% of some of the statistical information on a matter of important public interest.”(at para 6).

To be clear, the effect of s. 65(5.7) is not to prohibit the disclosure of information relating to the provision of abortion services. Rather, it simply removes decisions about the disclosure of such information from the statutory scheme. The Ontario government argued that freedom of expression rights were not affected by s. 65(5.7) because hospitals and/or the government could still release such information outside of the statutory scheme. Indeed, the government of Ontario had disclosed statistical information about abortion services to the applicant, and had even argued that because this information had been provided, the application was moot.

Prior to 2012, requests for data relating to the provision of abortion services could be made to government departments or agencies that were in possession of such data. For example, the Ministry of Health would have data about the number of abortions billed to OHIP, and those data could be sought through an access to information request. In responding to requests, the department or agency would ensure that the release of data was not subject to any of the exceptions in the legislation. Any disputes would be dealt with by the OIPC. In 2012, FIPPA was amended so as to include hospitals under the legislative scheme. This meant that the public would be able to make freedom of information requests to hospitals for data about their services. It was at this time that the legislation was amended to add s. 65(5.7). Justice Labrosse noted that the government’s justification for the addition of this exception was “to address the concern that disclosure of records relating to the provision of abortion services could pose risks to the safety and security of [hospital] patients, health care providers and other staff.” (at para 59). He characterized this as a pressing and substantial objective. He expressed skepticism, however, about the government’s stated secondary objective which was to “allow hospitals to decide if they wish to voluntarily disclose records relating to the provision of abortion services.” (at para 59). He noted that there was no policy framework put in place for such disclosures, and that no voluntary disclosures had ever been made.

Justice Labrosse essentially found that the exemption of the application of FIPPA to information about abortion services, which, as argued by the government, leaves hospitals and other government bodies free to disclose this information outside the FIPPA scheme, violates the freedom of expression. It is therefore the failure to ensure a framework for access to information, with all of its balancing exceptions and limitations that presents the constitutional problem. In rejecting the sufficiency of assurances by government that information can be provided outside of FIPPA on a voluntary basis, he noted that “Ontario has not pointed to any policy or legislative provision which would allow interested parties to rely on voluntary disclosure by Ontario.” (at para 40)

Justice Labrosse also rejected Ontario’s claims that Charter rights were not affected since statistical data was already available from other sources such as the Canadian Institutes for Health Information (CIHI), billing information voluntarily disclosed by the government, and statistical information available in some scholarly research. The government argued that this information was sufficient to allow for an informed public debate. In his view, significant discrepancies between the government data and the CIHI data meant that the CIHI data was not an adequate substitute. He also added that “requiring interested parties to project forward from dated statistical information published in journals” (at para 42) was also not sufficient to allow for meaningful public discussion.

Although Justice Labrosse accepted that the government had a pressing and substantial concern in protecting the safety and security of patients and health care providers, he found that the s. 65(5.7) went too far. He noted that the exception “includes no criteria to allow for disclosure of records which do not impact the objective of protecting the privacy and safety of patients seeking abortion services” (at para 66). The suspended declaration of invalidity means that the government now has 12 months in which to try to craft an exception that better balances their objectives with the public right of access to information.

It is worth comparing the provision struck down in this case with the new exemption in FIPPA for information relating to medically assisted dying. Medically assisted dying is also controversial and the government was clearly concerned about possible privacy and security implications for individuals and institutions. Yet the solution they crafted is much narrower than the broad exemption for information relating to abortion services. A new section 65(11) provides that: “This Act does not apply to identifying information in a record relating to medical assistance in dying.” This exception is only with respect to “identifying information”, rather than with respect to “records” more generally. Section 65(12) defines “identifying information as information “(a) that relates to medical assistance in dying, and (b) that identifies an individual or facility, or for which it is reasonably foreseeable in the circumstances that it could be utilized, either alone or with other information, to identify an individual or facility”. This provision may well serve as a model for the government as it crafts a new exception to replace s. 65(5.7).

This post is based upon a presentation I gave at a panel organized jointly by the Centre for Law, Technology and Society and the Centre for Health Law, Policy and Ethics at the University of Ottawa on February 1, 2017.

Canada is on the cusp of passing new legislation and enacting new regulations that will put us among a growing number of countries that have made plain packaging mandatory for tobacco products. Bill S-5, currently before the Senate, will amend the Tobacco Act to enable regulations to dictate the appearance of tobacco packaging. While the regulations are not currently available, it is to be expected that they will contain measures similar to those already introduced in Australia and Britain. Essentially plain packaging means prescribing a plain colour, size and configuration for all tobacco packages. In addition, packages will be used to convey graphic images and public health warnings. The only permitted use of tobacco trademarks will be of word marks consisting of the brand name and sub name in a prescribed font, colour and type-size. Tobacco trademarks consisting of logos, crests, images, colour, shape, configuration, or design will no longer be capable of use on tobacco product packaging.

Plain packaging is a movement driven by the World Health Organization’s Framework Convention on Tobacco Control, of which Canada is a signatory. Interestingly, however, the treaty does not require signatories to implement plain packaging. Article 11 of the Convention addresses packaging, but merely requires that false and deceptive elements on packaging be banned (e.g. using “mild” to designate cigarettes that are every bit as harmful as regular cigarettes); that health warnings take up 30-50% of packaging surface; and that packages contain information about constituent ingredients and product emissions. Canada’s current packaging regulations are consistent with these requirements. Plain packaging is merely mentioned as something that signatory states “should consider” in paragraph 46 of the Guidelines for Implementing Article 11 of the Convention. Thus, it is important to underline that Canada is not under an international obligation to introduce plain packaging legislation.

While the link between smoking and serious illness/death seems uncontestable, and the reduction of smoking is clearly an important public health objective, there is reason to question the wisdom of the plain packaging approach. Australia was the first country to introduce plain packaging in 2011. Its legislation survived a constitutional challenge (it was argued to be an illegal expropriation of trademark owners’ rights), and is currently being challenged before the World Trade Organization (WTO) as a violation of Australia’s obligations under the TRIPS Agreement. Although considerable sums of money have been spent on defending Australia’s statute, the evidence emerging as to the beneficial impact of the legislation is ambivalent.

Plain packaging measures in Canada are also likely to face legal challenges. Restrictions on the use of trademarks in the 1988 Tobacco Products Control Act were found by the Supreme Court of Canada to be a violation of the freedom of expression of trademark owners that could not be justified under s. 1 of the Canadian Charter of Rights and Freedoms. These provisions were struck down by the Court. Provisions related to the use of tobacco trademarks in sponsorship activities in a reconstituted Tobacco Act were also challenged for violating the freedom of expression, but the Supreme Court in 2007 found that the violation was justified as rationally connected to a pressing and substantial government objective, and that it minimally impaired the rights concerned. The takeaway from these cases is that restrictions on the use of tobacco trademarks (such as those necessary to implement plain packaging) clearly violate the freedom of expression. In any court challenge, therefore, the issue will be whether the measures can be justified under s. 1 of the Charter as a “reasonable limit, demonstrably justified in a free and democratic society”. It is important to remember that plain packaging restrictions are extreme and the evidence linking plain packaging to harm reduction is ambivalent. It is not obvious at the outset that such measures would survive a Charter challenge.

Trademark owners have also objected that the restrictions will harm their ability to acquire and maintain trademark rights in relation to tobacco products. Bill S-5 contains provisions that indicate that non-use of tobacco trademarks resulting from plain packaging regulations will not be a basis for the invalidation of existing registered trademarks. However, this does not settle the question. Trademark rights cannot be acquired (or maintained) at common law without use, and the law does nothing to address this category of rights. Further, certain kinds of trademarks (distinguishing guises, three-dimensional marks and other non-traditional subject marks soon to become registrable in Canada) cannot be registered until they have acquired distinctiveness through use. Plain packaging regulations might therefore constitute a bar to the registration of certain types of trademarks for use in relation to tobacco products.

Canada’s existing international obligations under both the TRIPS Agreement and the NAFTA may lead to further challenges to the introduction of plain packaging. The creation of an impediment to the registration of certain types of trademarks for tobacco products may violate Article 15 of TRIPS, and there is an open and ongoing debate as to whether plain packaging laws also violate Article 20 which provides that “The use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements, such as use with another trademark, use in a special form or use in a manner detrimental to its capability to distinguish the goods or services of one undertaking from those of other undertakings.. . “. Australia’s legislation has been challenged under TRIPS, and a decision on its compliance with that treaty may be imminent.

For its part, Article 1110 of the NAFTA provides that no member state can take a measure that is “tantamount to expropriation” of an investment except in limited circumstances which include a requirement to pay compensation. It is not clear whether a U.S.-based tobacco company could succeed before a NAFTA tribunal in arguing that the plain packaging laws amounted to an expropriation of their investment in their trademarks. The domestic challenge to Australia’s legislation turned on a property rights clause in the Australian constitution, and raised the question of whether the plain packaging was an expropriation of trademark rights. The majority of the court found that it did not, but of course that decision would not be binding on a NAFTA tribunal.

The plain packaging regulations on the horizon for Canada are being introduced in the face of considerable uncertainty as to their legality both under Canada’s constitution and Canada’s international trade obligations. The extensive resources required to defend such measures should be weighed carefully not just against the likelihood of success of any challenges, but also against the public health benefits that are likely to flow from further changes to how tobacco products are packaged in Canada.

It is perhaps also worth noting that there have been rumblings about plain packaging measures for other products considered harmful to public health, such as alcoholic beverages and junk food. The issues raised in relation to tobacco products have much broader implications, making this file one to watch.

How does one balance transparency with civil liberties in the context of election campaigns? This issue is at the core of a decision just handed down by the Supreme Court of Canada.

B.C. Freedom of Information and Privacy Association v. Attorney-General (B.C.) began as a challenge by the appellant organization to provisions of B.C.’s Election Act that required individuals or organizations who “sponsor election advertising” to register with the Chief Electoral Officer. Information on the register is publicly available. The underlying public policy goals to allow the public to see who is sponsoring advertising campaigns during the course of elections. The Supreme Court of Canada easily found this objective to be “pressing and substantial”.

The challenge brought by the B.C. Freedom of Information and Privacy Association (BCFIPA) was based on the way in which the registration requirement was framed in the Act. The Canada Elections Act also contains a registration requirement, but the requirement is linked to a spending threshold. In other words, under the federal statute, those who spend more than $500 on election advertising are required to register; others are not. The B.C. legislation is framed instead in terms of a general registration requirement for all sponsors of election advertising. BCFIPA’s concern was that this would mean that any individual who placed a handmade sign in their window, who wore a t-shirt with an election message, or who otherwise promoted their views during an election campaign would be forced to register. Not only might this chill freedom of political expression in its own right, it would raise significant privacy issues for individuals since they would have to disclose not just their names, but their addresses and other contact information in the register. Thus, the BCFIPA sought to have the registration requirement limited by the Court to only those who spent more than $500 on an election campaign.

The problem in this case was exacerbated by the position taken by B.C.’s Chief Electoral Officer. In a 2010 report to the B.C. legislature, he provided his interpretation of the application of the legislation. He expressed the view that it did not “distinguish between those sponsors conducting full media campaigns and individuals who post handwritten signs in their apartment windows.” (at para 19). This interpretation of the Election Act was accepted by both the trial judge and at the Court of Appeal, and it shaped the argument before those courts as well as their decisions.

The Supreme Court of Canada took an entirely different approach. They interpreted the language “sponsor election advertising” to mean something other than the expression of political views by individuals. In other words, the statute applied only to those who sponsored election advertising – i.e., those who paid for election advertising to be conducted or who received such services as a contribution. The Court was of the view that the public policy behind registration requirements was generally sound. It found that a legislature could mitigate the impact on freedom of expression by either setting a monetary threshold to trigger the requirement (as is the case at the federal level) or by defining sponsorship to exclude individual expression (as was the case in B.C.). While it is true that the B.C. statute could still capture organized activities involving expenditures of less than $500, and might thus have some limiting effect, the Court found that this would not be significant for a number of reasons, and that such impacts were easily reconcilable with the benefits of the registration scheme.

The decision of the Supreme Court of Canada will be useful in clarifying the scope and impact of the Election Act and in providing guidance for similar statutes. It should be noted however, that the case traveled to the Supreme Court of Canada at great cost both to BCFIPA and to the taxpayer because of either legislative inattention to the need to clarify the scope of the legislation or because of an over-zealous interpretation of the statute by the province’s Chief Electoral Officer. The situation highlights the need for careful attention to be paid at the outset of such initiatives to the balance that must be struck between transparency and other competing values such as civil liberties and privacy.

As a remedy, the Supreme Court of Canada struck down the entire statute, but put in place a suspension of invalidity for a period of year. This amount of time was considered reasonable for the Alberta legislature to amend the legislation to bring it into conformity with the Charter. The year passed without legislative action, and at the last minute the government scrambled to obtain an extension. The Court granted a six month extension on October 30, 2014.

The Alberta government has now introduced a bill to amend PIPA to bring it into conformity with the Charter.Bill 3 is framed in fairly narrow terms. In essence, it creates a new exception to the general rule that there can be no collection, use or disclosure of personal information without consent. This exception is specifically for trade unions. The collection, use or disclosure without consent is permissible if it is “for the purpose of informing or persuading the public about a matter of significant public interest or importance relating to a labour relations dispute involving the trade union” (proposed new sections 14.1, 17.1, and 20.1). The information collected, used or disclosed must be “reasonably necessary” for that purpose, and, in the circumstances, it must be reasonable to collect, use or disclose that information without consent.

The new provisions attempt to strike a balance between the right to privacy and the freedom of expression of trade unions. While it will now be permissible to collect, use or disclose personal information without consent in the context of a labour dispute, there is no blank cheque. Rather than exempt trade unions from the application of PIPA altogether, the new provisions set out the circumstances in which unions may act, and these actions will be under the supervision of the Office of the Information and Privacy Commissioner (OIPC). A person whose information is collected, used or disclosed without their consent by a union may still complain to the OIPC; the OIPC will get to determine if the union’s purpose was to inform or persuade the public “about a matter of significant public interest or importance relating to a labour relations dispute involving the trade union” This wording is interesting – actions by a trade union taken in support of another trade union may not qualify, nor may actions carried out by a trade union to protest a government’s policies. Further, an adjudicator might decide that the information was collected, used or disclosed in relation to a matter that was not of significant public interest or importance. Whether this exception strikes the right balance is an open question which may arise in the course of some future dispute.

The issue of the balance between the freedom of expression and privacy is an extremely interesting one, and it arises in other contexts under private sector data protection legislation. These competing rights are purportedly balanced, for example, by provisions that exempt journalistic, artistic and literary endeavors from the application of the statute in certain circumstances. However, as the United Food case demonstrates, these exceptions do not necessarily capture all of the actors who may have information of public interest that they wish to communicate. A few years ago I wrote an article about the “journalistic purposes” exception that is found in Alberta’s PIPA, as well as in B.C.’s Personal Information Protection Act and the federal Personal Information Protection and Electronic Documents Act. I argue that this exception may not strike the right balance between the right to journalistic freedom of expression and privacy. In the first place, it is not clear who is meant to be entitled to the exception (what are journalistic, artistic or literary purposes, and who gets to assert them?) Secondly, the exceptions are structured so that once it is decided that the acts in question fall within the exception, there can be no oversight to determine whether the manner in which the personal information was collected, used or disclosed went beyond what was reasonable for the legitimate information of the public.

Although the United Food saga may be approaching its close, the issues around the balance between freedom of expression and privacy are far from being resolved. Expect to see these issues surfacing in cases arising under private sector data protection legislation (as was the case with United Food) as well as in other privacy contexts as well.

Note: I recently posted about a privacy law suit that raised freedom of expression issues. It can be found here.

Interactive maps offer a great way to visualize information and to situate it in a geographic context. According to a press release issued by the sponsoring organizations, the Censorship Tracker is meant to be “an accessible and reliable resource that Canadians can use to gauge restrictions on free speech in Canada.” The map allows users to view dots reflecting all posted instances of limitations on freedom of expression, or to view instances based upon the type of limitation (suppression of personal correspondence, the banning of books, limits on public protest, and so on). Data can also be filtered based on other criteria such as the source of the threat (government, corporation, media, academic institution, and so on), the method used to limit expression, and the target of the limitation. There is also a filter to allow one to see whether the report of a limitation has been verified. The website allows users to file reports on incidents that can be added to the map.

Of course, one person’s free expression is sometimes another person’s crime, and not all reported examples will be what all Canadians unequivocally consider to be unwarranted limits on free expression. Nevertheless, the goal of the map is both to assist the organizations in responding to threats to freedom of expression by allowing for broad-based, crowd-sourced data collection, and to allow Canadians to access and visualize reported instances.